Wright v. L. G. Defelice & Son, Inc.

John J. Dillon, J.

The defendants seek a dismissal on the ground that the action is barred by the Statute of Limitations (CPLB, rule 3211, subd. [a], par. 5), and the plaintiff seeks a dismissal of the affirmative defense of the Statute of Limitations. The event giving rise to this action occurred on July 26, 1955, and on January 22, 1963, this action appeared on the Day Calendar and was marked peremptorily for trial for January 29, 1963. The plaintiff was not prepared to proceed to trial on the aforesaid date and the court thereupon granted the defendants’ motion to dismiss the complaint holding that it would be unreasonable to permit any further delay or adjournment in the trial of this action.

On May 13, 1963, the plaintiff reinstituted this action and it is his contention that under section 205 of the Civil Practice Law and Bules a new action upon the same cause of action which was dismissed may be maintained by him since the dismissal was not on the merits. However, the court’s previous dismissal of this action for plaintiff’s failure to proceed to trial was tantamount to “a dismissal of the complaint for neglect to prosecute the action”. Under these circumstances, the plaintiff’s cause of action is not preserved by section 205 of the Civil Practice Law and Bules and therefore the motion to dismiss the complaint is granted, and the cross motion to strike the affirmative defense is denied.